Sunday, March 13, 2005

Copyright Laws

The other day I found myself in a discussion with my college-age daughter and a friend. We were discussing music file sharing and I found myself outnumbered. Their position is that online music file sharing is simply theft – end of story. My position is that there is a continuum with theft at one end, perfectly legal and ethical participation in online communities at the other end, and some room to look at what we hope to achieve with laws to protect intellectual property in the middle.

As markers for the ends of the continuum, let me offer these two images…

The image on the left is fairly self-explanatory. It represents what most people think of when they equate online file sharing with theft -- and it cannot be denied that many – perhaps a majority of – file sharing users are simply looters in cyberspace, smashing windows and running away with anything they can get their hands on. If they think about the ethics of it at all – and most don’t – they will offer some idiotic pseudo-Marxian drivel about the rich record companies that oppress the little guy.

The image on the right may need a bit more explanation. Ada Jones was arguably the first female star in the record industry. She made her first recording, for Edison, in 1893 or 1894 and her career peaked around 1910. If you click on the image of her you should be able to download an MP3 file of her singing “If I Knock the ‘L’ Out of Kelly” which she recorded on an Edison Blue Ambersol cylinder in 1917. [If you click on the other image you won’t hear Jack. The helicopters are already circling for my snarfing the album cover from their web site.]

I downloaded the Ada Jones MP3 from the old Napster some time back. I was looking for songs I remembered my dad humming when I was a kid. Most of them are WWII vintage stuff and not that hard to find. A few took some tracking down and the Ada Jones thing was a real find. [It’s likely that dad heard a different (later) recording, but finding any version of that song is difficult.] The recording is 88 years old and my understanding of copyright laws suggests it is probably in the public domain. As far as I know no copyrights were broken or ethical rules bent in the process of my acquiring that file.

Most of the other songs I downloaded for my “Songs Dad Used to Hum” collection fall into the middle of the continuum. They are probably still under copyright but, in many cases, out of print and/or hard to find. I try to buy a legit copy of them whenever the opportunity presents itself – admittedly, often used disks on eBay – but some of them are pretty obscure. [In some cases, oddly obscure – why don’t we ever hear the Ames Brother’s “Rag Mop” on the oldies stations? It’s a hot song.]

There are two primary ways I look at intellectual property issues. The first is the notion that the creator (author, composer, performer, etc.) should own the work because, absent the creator, the work wouldn’t exist. Let me first state that I buy this argument for the simple cases, for recent works where the creator, or the creators agent, is generally known and is actively involved in managing its use. Most real world intellectual property has a number of “creators” and there is a bit of lawyer work to be done to decide the relative value of the contributions – but that doesn’t change the argument.

What does change the argument somewhat is work that is less commercially viable, older or relatively obscure, where the creator or his agent is more-or-less absent from the scene. The current owner of the work – often a third-party holding company – is not actively encouraging the use of the work so they can generate revenue because the expense of doing so would exceed the revenue generated. In theory, someone wanting to use the work could approach them and negotiate a fee but the expense of the negotiation is once again a barrier. The only time the rights to such works are exercised is when the owner believes someone has violated them and litigates for compensation.

An analogy would be buildings that might at one time have commanded high rents that have fallen into disrepair. The owners of the buildings make no attempt to rent the buildings but have installed man-traps at the entrances to collect an occasional dollar freeing people who have blundered into them. I suppose that some of the money paid to the architects that designed the buildings might have come from the expectation that some future owner could roll drunks in the lobby or let out the second floor to hookers – but not very much. Similarly, by the time a song has been sold three or four times and has lost most, if not all, of its commercial value, the argument that, without its long-dead composer, the song wouldn’t exist gets harder to apply.

Note that it is commercial viability, not age, that positions things on the continuum. I wouldn’t have minded seeing the copyright on Peter Pan extended again. As far as I am concerned it meets all the criteria for protection. But some of the last few recording of Ada Jones are still under copyright and I don’t think they should be. Poor Ada has almost disappeared, it would be a pity if Metallica finished her off. Nobody will ever make big money selling her music but it’s kind of fun to listen to her sing.

The second way I think about intellectual property rights... [Yes, I know, you were hoping I had forgotten that I promised two ways, but no such luck.] The second way to look at them is from a utilitarian point of view. By this line of thinking we protect intellectual property rights to encourage people to create and distribute usefule and/or enjoyable works by offering them the assurance that they will be garanteed a piece of the action. This argument works if you don't give a rat's ass who "owns" things, or why they should. A true Utilitarian is just in it for the stuff and the best way to get the stuff is to make sure the people who make the stuff get paid for it.

Libertarians (and I am one, most of the time) tend to be rather suspicious of utilitarian reasoning. When Nathaniel Brandon came down from the mountain there was nothing on his stone tablets that talked about "the greatest good for the greatest number." The second way to look at intellectual property is clearly inferior to the first when both can be applied. While the ink is still wet I am 100 percent with the rights of the creator to do whatever he wants with his work. But after a few years, when the creator has passed away and nobody is quite sure if he sold the rights to the work, or to whom, and nobody much cares -- when "He made it so he owns it" has turned into "Somebody must have made it so maybe somebody still owns it" -- then the utilitarian argument starts to make sense.

So, what do I think would be better? I think that we should change the way copyrights work to try to get some of the commercially non-viable stuff out into the public domain faster and to reduce the barrier to use of work of marginal commercial value. On the one hand, I still think that the creator should own the material and should call the shots. On the other hand, when someone secures a copyright on a piece of work he is, in effect, asking society to recognize the concept of ownership of abstractions – of an image on paper or a series of bits in a computer stream – and it seems fair to ask something in return.

Specifically, I think the initial period of protection under a copyright should be much shorter and that after that period the copyright should need to be renewed every year to remain in effect. A small fee, say ten dollars, should be required to renew the copyright. To compensate copyright holders for this additional effort and expense I think the amount of time a copyright can remain in effect (when renewed annually) should be increased.

This is intended to engage the copyright owner in the decision about commercial viability – as long as the owner thinks the work has potential for revenue the copyright can remain in place. When the owner writes it off it enters the public domain. The periodic renewal also puts the owner on record as an active, current holder of the rights.

The intention here is not to deny holders of intellectual property rights their revenue. It is to make as much material available to the public as possible, both by encouraging owners to release unprofitable property into the public domain and giving them incentive to embrace new lower unit-royalty, lower cost methods for marketing their marginal holdings. By simplifying the process of determining who currently owns the rights to a work it will reduce the chilling effect that causes worthy but obscure older works to be passed over by publishers because of fear of litigation.

Back when I was a Napster user (I haven’t signed up for the new service yet) some people thought the cool thing about it was you could get music for free. I liked it because I could get the music. I liked the oddball stuff that nobody would sell because nobody would buy it. I miss that. I want it back.

Most of what I know about Ada Jones I got from an online sample chapter from Tim Gracyk’s book “POPULAR AMERICAN RECORDING PIONEERS” which he has posted at

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